Trump’s First 100 Days: Crackdown

What will President Trump do in his first 100 days? Among other things, turn the power of government against his critics. (More)

Lots of people are predicting what President Trump and Republicans in Congress will do. Most are the same people who, a week ago, were predicting what President Clinton would do, so feel free to ignore them. Then again, I predicted what President Clinton would do … so feel free to ignore me too.

“One of the things I’m going to do if I win, and I hope we do and we’re certainly leading. I’m going to open up our libel laws so when they write purposely negative and horrible and false articles, we can sue them and win lots of money. We’re going to open up those libel laws. So when the New York Times writes a hit piece which is a total disgrace or when the Washington Post, which is there for other reasons, writes a hit piece, we can sue them and win money instead of having no chance of winning because they’re totally protected,” Trump said.

As that article and most other critics noted, most libel lawsuits are covered by state rather than federal law, and a unanimous U.S. Supreme Court held in New York Times v. Sullivan that even false statements about public figures are protected by the First Amendment unless the plaintiff can prove “actual malice,” that is: that the publisher knew the statements were false or published with reckless disregard for whether the statements were true or false.

It’s true that most libel lawsuits are currently covered by state law, but Congress could pass a federal libel statute that supersedes state laws. In the internet age, anything published anywhere is published everywhere, so Congress could justify a federal libel statute under the Commerce Clause.

Even if Congress doesn’t rush to pass such a law, President Trump can still file state libel suits against his accusers, the Times, the Post and other media outlets. They’ll have to spend money to defend those claims, and he’ll try to make those lawsuits as expensive as possible. Like Peter Thiel – a Trump supporter – President Trump’s goal would be to bankrupt media critics.

I expect President-elect Trump will file those suits before his inaugural, but if not then President Trump will file them. Yes, the lawsuits would likely fail under Sullivan. But that case was decided in 1963, by a very different Court than we’ll have after the Senate confirms President Trump’s nominee to replace Antonin Scalia. And by the time his libel cases reached the Court, Trump might well have replaced one or two other Justices. A Trump-friendly Court might well hold that Sullivan is archaic and public figures can win unless the publisher can prove that allegedly libelous statements are true.

I also expect President Trump will order the IRS to investigate the Post and other media outlets, as he promised in May. The GOP have been raging against the media for decades. President Trump will try to act on that rage.

“I am going to instruct my attorney general to get a special prosecutor to look into your situation”

Asked by Fox News host Bill O’Reilly what he would do about Black Lives Matter, Trump responded: “Well, you see them marching and you see them on occasion – at least, I have seen it – where they are essentially calling death to the police.”

“That’s not acceptable whether you like them or don’t like them,” he said.

Trump then proposed to “look into it very seriously.”

“I have seen them marching down the street essentially calling death to the police and I think we’re going to have to look into that,” he said.

O’Reilly pressed Trump on whether he would ask the Justice Department to look into criminal charges against the movement.

“When you see something like that taking place – that’s really a threat, if you think about it. And when you see something like that taking place, we are going to have to perhaps talk with the Attorney General about it or do something,” he said. “But, at a minimum, we’re going to have to be watching because that’s really bad stuff and it’s happened more than once.”

Again, I fully expect President Trump to follow through on that promise. DeRay Mckesson and other Black Lives Matter leaders will be targeted for FBI surveillance, and the FBI will probably follow their usual practice of seeking an indictment for “making false statements.” That is, agents will find something that Mckesson target said, tweeted, or emailed, then conduct an interview designed to trap the Mckesson on any inconsistency. It won’t matter that Mckesson hasn’t advocated violence or any other criminal act. At trial, it will only matter that Mckesson said, tweeted, or emailed Something – months or years ago – and then told an FBI agent Something Else.

That’s my prediction for the First 100 Days Crackdown. I hope I’m wrong.